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HCAL 106/2021
[2024] HKCFI 2949
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 106 of 2021
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BETWEEN
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Nguyen Bich Thuy |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 2 February 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 5 January 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 May 2017 (the “Notice”) refusing her claim for non-refoulement protection.
Background
2. The Applicant is a Vietnamese national. She entered Hong Kong illegally on 25 November 2015 and surrendered to the Immigration Department on 26 November 2015. On the same day, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
3. However, before her leave application came to be processed, she had been removed to her home country. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview (the “ROI”) in the presence of her lawyer. In gist, the Applicant claims that if she is returned to Vietnam, she will be harmed or killed by a moneylender, as if she is unable to repay an outstanding loan.
5. The Applicant, now aged 42, was born in Phuong Cam Tinh, Thanh Pho Cam Pha, Tinh Quang Ninh, Vietnam. She is widowed. Her son, two siblings and mother are living in Vietnam. She completed her secondary education in 1999. She had 5 years’ experience working in a restaurant.
6. In 2008, the Applicant borrowed 800 million Vietnamese Dong (“VND”) at a monthly interest of 8 million VND from the moneylender for starting her fashion retail business. No collateral or guarantor was required. No maturity date was fixed.
7. In the first year, her business was doing well and she could pay the interest. She bought garments through a middle man, whose surname and address she did not know. She paid him 900 VND for garments bought from China without requiring any receipt. During the course of delivery of the goods from China in mid-2009, her workers were stopped by the Vietnamese customs officer and they fled. Her garments were confiscated as unmanifested cargo. Having lost her goods and capital, she had to cease business. One to two months later, the moneylender went to her home to demand settlement of the loan. She requested more time to pay. After giving her a warning, the moneylender left without hurting her.
8. Towards the end of 2009, the moneylender and his associates went to her home to demand repayment. As she could not settle the loan, they demanded her to traffic in dangerous drugs for them. She refused. They became angry and beat her up. After warning her that they would beat her up again if she could not repay, the moneylender and his associates left. The Applicant went to report the incident at Phuong Cam Thinh police station. The police officers told her to leave once they knew that particular moneylender was involved. The Applicant thought the officers tried to avoid trouble and treated the incident as a private monetary dispute.
9. Then the Applicant relocated to Ho Chi Minh City for half a year. One day in mid-2010, whilst walking on the street, an unknown person asked her about her identity. Fearing that person was the moneylender’s associate, she immediately ran back to her residence. Then she moved to her relative’s home in Thai Binh province.
10. In 2010, she went with her friend to work in Cyprus as a caretaker. She was refouled in May 2015. In November 2015, on the advice of some passers-by, she sneaked into Hong Kong.
11. In 2017, her mother told her on the telephone that the moneylender was still looking for her to kill her, and warned her not to return to Vietnam. She does not believe that the Vietnamese authorities and police could protect her, as they regarded the dispute between her and the moneylender was a private matter. She does not believe internal relocation would be viable, because the moneylender could locate her throughout the country through his powerful network.
The finding of the Board
12. The Board found the Applicant’s case of loan inherently improbable. The Board found it incredible that the moneylender would have lent such a huge sum of money to a person without business experience to start a business venture. It found her account of her loss inherently improbable. Her dealing with the middle man and entrusting 900 million VND with him and failing to chase him for the money (even though he claimed to have been bankrupted) un-business-like and incredible. It found her flight to Hong Kong on the advice of some unknown passers-by incredible. It rejected her case in its entirety.
13. The Board found on the basis of authoritative and credible country of origin information that the Vietnamese government is ready to fight bribery and corruption by establishing the anti-corruption legal framework and enforcement mechanisms. It found adequate state protection would be available if and when the Applicant required. Applying the law applicable to non-refoulement protection to the facts found, the Board came to the conclusion that the Applicant had failed to establish the factual basis in support of her claim to non-refoulement protection. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
15. The Applicant did not advance any grounds for review in Form 86 or her supporting affirmation. In the absence of any specific grounds of review, the Court could only focus on errors of law in the Decision, procedural unfairness in the making of the Decision and irrationality in the Decision.
Conclusion
16. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected almost the entirety of her case. This is a finding fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
17. The Applicant has been removed to Vietnam. The Court does not have her contact address in Vietnam. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forwarded them to the Applicant.
Dated the 25th day of October 2024
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( Seline Sze )
for Registrar, High Court
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Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 25/10/2024
Nguyen Bich Thuy
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7204/17/5/210/V1355
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 636/17 (Formerly RBCZ/4412/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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